Appeal details
Counselvise Citation
[2024] 101 COUNSELVISE.COM (IT) 4914 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
7 month(s) 10 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
13-08-2024
Appeal Filed By
Assessee
Order Result
PartlyAllowed
Bench Allotted
SMC
Assessment Year
2021-2022
Appeal Filed On
02-01-2024
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, KOLKATA डॉ. मनीष बोरड, लेखा सद᭭य के समᭃ Before Dr. Manish Borad, Accountant Member I.T.A. No.24/KOL/2024 Assessment Year: 2021-22 Shri Kirti Agarwal .... Appellant (PAN: AKRPA1054F) Vs. CPC Tax officer, Ward-40(1), Kolkata .... Respondent Appearances by: Shri J. M. Thard, Advocate appeared for Appellant. Shri B. K. Singh, JCIT appeared for Respondent. Date of concluding the hearing : 18.07.2024 Date of pronouncing the order : 14.08.2024 ORDER This appeal filed by the assessee pertaining to the Assessment Year (in short “AY”) 2021-2 is directed against the order passed u/s 250 of the Income Tax Act, 1961 in short the “Act”) by Ld. Commissioner of Income-tax (Appeal), Addl/JCIT(A)- 9, Delhi [in short Ld. “CIT(A)”] dated 29.11.2023 arising out of the intimation u/s 143(1) of the Act by ADIT, CPC, Bengaluru dated 28.04.2022. 2. Grounds of appeal raised by the assessee are reproduced as under: “1. The learned CIT(A) erred in not condoning the delay of 463 days in filing the appeal before the CIT(A) and dismissed the appeal without going into the merits. The learned CIT(A) erred in observing that the appellant has failed to show sufficient cause to condone the delay. I.T.A. No. 24/Kol/2024 Kirti Agarwal, AY : 2021-22 Page 2 of 5 2. The learned CIT(A) erred in not directing the Centralised Processing Centre (CPC) for granting credit for TDS of INR 75,190 claimed by the appellant in respect of income from salary. 3. The appellant had offered the income from salary of INR 9,51,596 received from her employer M/s. Gulam Mustafa Enterprises Private Limited on which tax of INR 75,190 was deducted at source by the employer. Since the appellant offered the income from salary, she is entitled to claim credit for corresponding tax deducted at source as per Section 199 of the Income tax Act against such salary. Therefore, the CPC may be directed to grant the credit for such TDS. 4. It is submitted that although the tax was deducted by the employer, it appears that the same has not been deposited by the employer in Government treasury. Therefore, without prejudice to the above, the Cl'C may be directed to abstain from taking any coercive action against the demand recovery against the appellant. Where tax is deductible at the source under Chapter XII or the Income tax Act, the assessee shall not be called upon to pay the tax himself to the extent to which tax has been deducted from that income as per Section 205 of the Income tax Act. 5. The learned assessing officer erred in levying interest under Sections 234B and 234C of the Income tax Act.” 3. The grievance of the assessee is two-fold, firstly, the Ld. CIT(A) erred in not condoning the delay of 463 days in filing the appeal and dismissed the appeal without going into merits. Second grievance is that CPC erred in not granting TDS credit of Rs.75,190/- by the employer. 4. Brief facts of the case are that assessee is an individual and filed return of income for AY 2021-22 on 21.12.2021 declaring total income of Rs. 8,14,915/-. Though the income comprised of salary on which tax at source of Rs.75,190/- deducted by the employer Gulam Mustafa Enterprises Private Limited (GMEPL) but the employer failed to deposit the tax deducted at source to the government treasury. The TDS credit was not reflecting in I.T.A. No. 24/Kol/2024 Kirti Agarwal, AY : 2021-22 Page 3 of 5 26AS statement and the CPC did not grant the tax credit and determined the demand. Aggrieved, assessee preferred appeal before the Ld. CIT(A) but the same was time barred by 463 days. Though the assessee stated that there was a reasonable cause as the assessee was hopeful to succeed in the rectification application filed with the CPC for rectification of the demand but in the meantime, the time limit for filing the appeal before the Ld. CIT(A) expired. However, the Ld. CIT(A) was not satisfied with the submission of the assessee and did not condone the delay and dismissed the appeal without adjudicating the issues on merit. Aggrieved, assessee is in appeal before this Tribunal. 5. Ld. Counsel for the assessee submitted that the TDS has been deducted by the employer and assessee should get the credit as per section 199 of the Act. He also submitted that default for the employer why the assessee should suffer. 6. On the other hand, Ld. DR stated that when the tax has not been deposited by the employer then, how the TDS credit can be given to the assessee. He also submitted that the delay before the Ld. CIT(A) is considerable and assessee failed to provide reasonable cause, so the Ld. CIT(A) has rightly dismissed the appeal of the assessee. 7. I have heard both the parties and perused the material available on record. I note that the ld. CIT(A) dismissed the appeal of the assessee on account of delay. I, however, notice that the order passed by the CPC was during Covid restrictions. Also I note that the assessee has been taking all necessary efforts I.T.A. No. 24/Kol/2024 Kirti Agarwal, AY : 2021-22 Page 4 of 5 with the CPC to get the mistake rectified since the TDS was deducted by the employer but it was not reflecting in 26AS. Further also, for all such work related to rectification on the CPC and then filing the appeal before the Ld. CIT(A) assessee is dependent on the legal consultant. Considering the situation that the assessee is a salaried employee, I am inclined to condone the delay of 463 days in filing the appeal before the Ld. CIT(A). 8. So far as merits of the case are concerned, it is an admitted fact by the Ld. Counsel for the assessee that the employer (GMEPL) failed to deposit the tax deducted at source at Rs.75,190/-. Now, unless the alleged sum has not been deposited in the government treasury the same cannot reflect in 26AS. The option left with the assessee is either to approach the employer or to take legal remedies available under the law and file a case against the employer to either get the refund of TDS deducted or to get the alleged TDS amount deposited in the government treasury. For all these exercises assessee has to follow up from his own end. 9. However, considering the facts that the Ld. CIT(A) has not dealt with the merits of the case, I restore the matter to the file of the Ld. CIT(A) to deal on merit and pass a speaking order and in the meantime if alleged sum is deposited by the employer in the government treasury then the assessee can furnish the copy of updated 26AS. Ld. CIT(A) is thus directed to decide the matter in accordance with law as per my direction given supra. I.T.A. No. 24/Kol/2024 Kirti Agarwal, AY : 2021-22 Page 5 of 5 10. In the result, appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 14 th August, 2024. Dated:14thAugust, 2024 Sd/-[Dr. Manish Borad] Accountant Member J.D. Sr. PS. Copy of the order forwarded to: 1. Appellant – Kirti Agarwal, 11A, Braunfeld Row, Kolkata- 700027. 2. Respondent – CPC Tax Officer, Ward-40(1), Kolkata 3. CIT(A) Addl/JCIT(A)-9, Delhi 4. CIT- 5. Departmental Representative 6. Guard File. True copy By order Assistant Registrar ITAT, Kolkata Benches, Kolkata
Mehul